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The 2011 Moroccan Constitution: a Critical Analysis

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The 2011 Moroccan Constitution: a Critical Analysis The 2011 Moroccan Constitution: A Critical Analysis Contributors: Mohamed Madani Driss Maghraoui Saloua Zerhouni International IDEA resources on Constitution Building The 2011 Moroccan Constitution: A Critical Analysis © International Institute for Democracy and Electoral Assistance 2012 International IDEA Strömsborg, SE-103 34, STOCKHOLM, SWEDEN Tel: +46 8 698 37 00, fax: +46 8 20 24 22 E-mail: [email protected], website: www.idea.int The electronic version of this publication (excluding the cover photo) is available under a Creative Commons Licence (CCl) – Creative Commons Attribute-NonCommercial-ShareAlike 3.0 Licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information on this CCl, see <http://creativecommons.org/licenses/by-nc-sa/3.0/>. International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. Graphic design by: Turbo Design, Ramallah Cover Photo: Abdeljalil Bounhar/AP/Scanpix ISBN: 978-91-86565-66-4 Foreword In the context of the popular uprisings that swept across North Africa starting in Tunisia in December 2010, the Kingdom of Morocco responded by rapidly drafting and adopting a new constitution in July 2011. Although Morocco took the lead in that regard, Jordan reformed its existing constitution in September 2011 while Egypt adopted a new permanent constitution in December 2012. Tunisia, Libya, Algeria and Yemen are all currently engaged in constitution revision processes of one type or another and are likely to be followed by other countries in the future as the process of change continues. Within a dynamic of change, one of the questions that must be answered is whether new constitutions respond to popular aspirations and to the specific demands expressed by the people during the course of the uprisings. Although the protests have clearly been motivated by a desire for greater transparency and accountability in governance, for the most part these demands have not been translated into detailed demands for change at the level of the constitution. Mohamed Madani, Driss Maghraoui and Saloua Zerhouni, the authors of this critical analysis of the 2011 Moroccan Constitution, offer significant insights in this regard. They provide a strong overview of Morocco’s historical, political and legal context, and scrutinize each section of the constitution in the light of the demands for change that were expressed in the historic demonstrations that took place in 2011. International IDEA is proud to publish this excellent study as part of a series that will be published on constitutional processes in the region. We are confident that the study will contribute to a better understanding of developments in the West Asia and North Africa region since December 2010 and that it will inform the continued debate on constitutional reform in Morocco and beyond. Ayman Ayoub Regional Director West Asia and North Africa Programme International IDEA III Contents Foreword ........................................................................................................................ III Executive summary .................................................................................................. 6 Introduction .................................................................................................................. 9 The general political context ........................................................................ 10 The historical constitutional context ........................................................ 13 The procedural context of the 2011 constitution ................................ 15 Preliminary remarks on the constitution ................................................ 16 The constitution’s principles and basic values........................................... 18 The political system and its foundations ............................................... 18 The identity of the kingdom .......................................................................... 18 The Islamic provisions ..................................................................................... 19 Human rights ........................................................................................................ 20 The organization of power at the national level ....................................... 24 The executive branch ....................................................................................... 24 Royal powers ........................................................................................................ 24 Immunity of dahirs ............................................................................................ 25 The king’s speeches ........................................................................................... 26 Powers of the king with regard to the government ................................ 27 Appointment of the head of government .............................................. 27 Resignation of the head of government ................................................. 28 Other government members ........................................................................ 28 Resignation or removal ................................................................................... 29 Appointment to military positions ............................................................. 30 The presidency of the Council of Ministers .......................................... 31 Royal powers during a crisis ........................................................................ 32 State of siege ........................................................................................................ 32 State of exception .............................................................................................. 32 The organization of power at the local level............................................... 34 The parliament in the 2011 constitution: changes and continuities ...................................................................................... 37 Maintaining a bicameral system with pre-eminence to the Chamber of Representatives ............................ 37 4 The 2011 Moroccan Constitution: A Critical Analysis Reinforcing parliamentary powers and enlarging the domain of the law ....................................................... 38 New status for the opposition ..................................................................... 39 Weakness of the parliament.......................................................................... 40 The image crisis of the parliament and of MPs .................................. 41 Executive power ......................................................................................................... 43 The judiciary: towards more independence ................................................ 45 Revision of the constitution ................................................................................ 47 Conclusions and recommendations ................................................................ 49 References ..................................................................................................................... 52 About the authors ..................................................................................................... 52 Endnotes ........................................................................................................................ 53 About International IDEA ...................................................................................... 56 5 Executive summary The Moroccan political and constitutional context represents an interesting situation in the Middle East: a reigning monarchy that, despite having been in power for more than three centuries, has nevertheless evolved in recent years. In the context of highly discredited and politically weak Moroccan political parties and labour unions, on 20 February 2011 approximately 150,000–200,000 Moroccans in 53 cities and towns across the country marched in a call for greater democracy and change. This movement was joined by a range of political groups, comprising a mishmash of different ideological positions united only by their opposition to authoritarian rule in all its manifestations. While the king acknowledged the need for a social charter, and later constitutional reform, the entire constitutional reform process was driven by the king’s agenda. The royal commission for constitutional reforms met representatives from different political parties and civil society organizations, but the majority of political parties failed to engage generally in any significant debates about key articles of the constitutional text. In the end, the constitution was ‘validated’ by the royal cabinet before the referendum, and most political parties, despite their lack of substantive input, supported the text when it was put to referendum and called on their members to vote ‘yes’. Under such political conditions, the referendum on 1 July 2011 was akin to a renewal of the traditional act of allegiance between the sultan and his subjects. The new constitutional text was enacted on 29 July 2011. The new Moroccan constitution includes many human rights that were not previously recognized
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